Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

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Tuesday, 03 January 2012

Two Views on the State of Capital Punishment

"Why the Death Penalty Is Slowly Dying," is the title of Adam Cohen's column at Time. It's subtitled, "Little by little, governors, state legislatures, judges and juries are quietly deciding not to support capital punishment."

There has long been an idea about how the death penalty would end in the United States: the Supreme Court would one day hand down a sweeping ruling saying that it is unconstitutional in all cases. But that is not what is happening. Instead of top-down abolition, we seem to be getting it from the bottom up — governors, state legislatures, judges and juries quietly deciding not to support capital punishment.

Ground zero for this grassroots abolition movement is Illinois. In 2000, the state’s Republican governor imposed a moratorium on executions after several inmates on the state’s death row were found to be innocent. In early 2011, Illinois’ Democratic governor signed a bill passed by the state legislature repealing the state’s death penalty.

Illinois is part of small boomlet of repeals at the state level. New Jersey abolished its death penalty in 2007. New Mexico abolished its death penalty in 2009. There are now 16 states — or about one-third of the country — that have abolished capital punishment. Even in states that still have the death penalty, it has not been faring well. Last year, Oregon’s governor declared a moratorium on all executions in his state, saying that the system in place “fails to meet basic standards of justice.” Other governors are taking a more ad hoc approach. In September, Ohio Gov. John Kasich, a conservative Republican who once hosted a Fox News show, commuted the death penalty of a convicted killer, citing his youth when he committed his crime and his troubled upbringing.

There are several reasons we seem to be moving toward de facto abolition of the death penalty. A major one has been the growing number of inmates on death row who have been exonerated — 139 and counting since 1973 according to a list maintained by the Death Penalty Information Center. Even many people who support the capital punishment in theory balk when they are confronted with clear evidence that innocent people are being sentenced to death.

Another factor is costs. Money is tight these days, and more attention is being paid to just how expensive death penalty cases are. A 2008 study found that California was spending $137 million on capital cases — a sizeable outlay, particularly since it was not actually managing to put anyone to death.

With a drug cocktail that puts death row inmates to sleep, California's capital punishment can hardly be said to be cruel — but it is so unusual that death row inmates in the Golden State routinely die of old age or by suicide. When, or more likely if, justice comes, it doesn't come cheap. By some estimates, it costs $100,000 a year per prisoner to keep California's 718 inmates alive on death row, thanks in part to the endless, often frivolous appeals brought by inmates and death penalty opponents. If capital punishment is prohibitively expensive, it is because those professionally seeking to abolish it have made it so.

Even death penalty supporters, such as Chief Justice Tani Cantil-Sakauye of the California Supreme Court, have given up. "I don't think it is working," the newly appointed chief justice told The Times last week. California's death penalty requires "structural change, and we don't have the money." Still, Californians need a "merit-based discussion on its effectiveness and costs." But the chief justice ignored why that load continues to mount: death penalty opponents.

Death penalty foes have seized on the cost issue for their latest attempt at killing it off. Led by Natasha Minsker of the ACLU of Northern California, they are gathering signatures to put the so-called SAFE California initiative on the November 2012 ballot. Minsker's co-written report, "California's Death Penalty Is Dead," concedes that it is the appeals process that clogs the courts, noting that "death penalty trials cost up to 20 times more than trials for life imprisonment without the possibility of parole.... Taxpayers are legally required to pay for numerous appeals in death penalty cases, unlike cases involving life without possibility of parole, where the prisoner gets only one taxpayer-funded appeal."

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The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.